9911796707
TMI Blog2014 (8) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... ter is remitted back to the AO for re-examination – Decided in favour of Assessee. - I.T.A No. 24/Coch/2014, I.T.A No. 154/Coch/2014 - - - Dated:- 25-7-2014 - Shri N. R. S. Ganesan (JM) And Shri Chandra Poojari (AM),JJ. For the Petitioner : Shri R. Sreenivasan For the Respondent : Shri K. K. John, Sr DR ORDER Per N. R. S. Ganesan (JM) Both assessee and revenue filed the appeals against the very same order of CIT(A) for the assessment year 2009-10, therefore, we heard the same together and dispose of the appeals by this common order. 2. Let us first take assessee s appeal in ITA No.24/Coch/2014. The only issue arises for consideration is disallowance u/s 40(a)(ia) of the Act. 3. Shri R Sreenivasan, the ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... geable to tax, there is no question of any disallowance. According to the ld. representative, the disallowance could be considered only in case the assessee claimed deduction while computing the income chargeable to tax. 4. On the contrary, Shri K.K. John, the ld.DR submitted that admittedly, the assessee made payment to non resident for providing technical services. Therefore, the payment made to non resident is taxable in India. Hence the assessee is liable to deduct tax at the time of payment. Admittedly, the tax was not deducted. Therefore, the assessing officer disallowed the entire payment made by the assessee as provided in section 40(a)(ia) of the Act. On a query from the bench when the assessee has not claimed the payment made t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion in computing the income of the previous year in which such tax has been paid. Explanation.- for the purposes of this sub-clause,- (A) royalty shall have the same meaning as in Explanatin 2 to clause (vi) of sub-section (1) of section 9; (B) fees for technical services shall have the same meaning as in Explanation 2 to clause (vii) of subsection (1) of section 9; (ia) any interest, commission or brokerage, rent, royalty, fees for professional services or fees for technical services payable to a resident, or amounts payable to a contractor or sub-contractor, being resident, for carrying out any work (including supply of labour for carrying out any work), on which tax is deductible at source under Chapter XVII-B such tax h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. In this case, the assessee claims that deduction was not claimed as expenditure while computing the income chargeable to tax. The CIT(A) observed that irrespective of the fact that whether the assessee has claimed as deduction or not disallowance has to be made since tax was not deducted. Both the authorities below have not examined whether the amount paid to the non resident was deducted while computing the income chargeable to tax or not. In order words, even though the assessee claims that the payment to non residents was not claimed as expenditure while computing taxable income, the same was not examined by any of the authorities below. The language of section 40 clearly says that the amount paid to non resident on which tax was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T(A), by following the order of this Tribunal for the assessment years 2004-05 and 2006-07 deleted the addition made by the assessing officer. The ld. representative for the assessee filed copy of the order of this Tribunal for the assessment year 2006-07. This Tribunal by following the earlier order for assessment year 2004-05 confirmed similar order of CIT(A). Since the facts are admittedly identical to that of assessment year 2004-05 and 2006-07 and the CIT(A) followed the orders for assessment year 2004-05 and 2006-07, we do not find any infirmity in the order of the CIT(A). Accordingly, the same is confirmed. 4. In the result, the appeal of the assessee is allowed for statistical purpose and the appeal of the revenue is dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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